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Brooksville, FL 34601

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DUI Test Refusal

When people are arrested for driving under the influence (DUI) of alcohol or a controlled substance in Florida, the results of chemical tests performed on the alleged offenders are critical to prosecutors who frequently rely on such information for evidence in order to obtain convictions. For this reason, many people refused to submit to any kind of DUI tests for several years until the state legislature made it a law that all licensed drivers accused of drunk driving had to submit to such tests.

Refusing to submit to a breath, urine, or blood test is admissible as evidence in DUI criminal proceedings in Florida, and people who have previously refused to submit to DUI tests can face additional criminal charges. It is important to note that DUI test refusal laws only apply to lawful stops and arrests.

Lawyer for DUI Test Refusal in Brooksville, FL

Did you allegedly refuse to submit to a breath, urine, or blood test when you were arrested in Central Florida for DUI? You should make sure that you seek legal representation as soon as possible.

Ashley Aulls of Ashley M. Aulls, P.A. is an experienced criminal defense attorney in Brooksville who represents clients facing drunk driving charges all over Hernando County, Pasco County, Sumter County, and Citrus County. He can provide a complete evaluation of your case as soon as you call (352) 593-4115 to schedule a free, confidential consultation.


Overview of Implied Consent and DUI Test Refusal in Florida


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DUI Test Refusal Penalties in Hernando County

Just like every other state in the nation, Florida has an “implied consent” law. Florida Statute § 316.1932 states, “Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.”

Implied consent essentially translates to any motorist who receives a driver’s license in Florida automatically agrees to provide specimens for chemical testing in DUI cases. The term “refusal” does not just apply to people who decline to perform DUI tests, as alleged offenders who are unable to provide necessary breath samples, decline to provide additional breath samples after initial tests, or are simply argumentative with law enforcement can also be considered as having refused testing.

When an alleged offender refuses to submit to a breath, urine, or blood test, he or she could face the following penalties in addition to other criminal charges for the underlying DUI offense:

  • First Refusal — Suspension of driver’s license for one year;
  • Second or Subsequent Refusal — Suspension of driver’s license for 18 months and first-degree misdemeanor offense punishable by up to one year in jail and/or a fine of up to $1,000.

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Types of DUI Tests in Brooksville

In most DUI cases, the chemical test most frequently used is the breath test to measure an alleged offender’s blood alcohol concentration (BAC). Police officers will typically ask alleged offenders to submit to either (or both) portable or standalone devices such as the Intoxilyzer 8000 to measure their BACs.

When an alleged offender is believed to be under the influence of a chemical substance or controlled substance, authorities may seek to have that person submit to a urine test. Florida Statute § 316.1932(1)(a)b. establishes that urine tests must be “administered at a detention facility or any other facility, mobile or otherwise, which is equipped to administer such test in a reasonable manner that will ensure the accuracy of the specimen and maintain the privacy of the individual involved.”

Alleged offenders may also voluntarily submit to blood tests, but police officers are limited in their ability to compel people to submit to such tests when they have refused to provide samples. Florida’s implied consent law lays out two exceptions under which authorities can request or compel alleged offenders to submit to blood tests:

  • Under Florida Statute § 316.1932(1)(c), a licensed driver is “deemed to have given his or her consent to submit to an approved blood test” if there is reasonable cause to believe he or she was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and “the administration of a breath or urine test is impractical or impossible.”
  • Under Florida Statute § 316.1933(1)(a), a law enforcement officer who has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being can require the alleged offender to submit to a blood test and “may use reasonable force if necessary to require such person to submit to the administration of the blood test.”

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Florida Resources for DUI Test Refusal

Florida Statute § 316.1932 — View the full text of Florida's “Implied Consent Statute.” In addition to establishing penalties for refusal to submit to tests upon the request of law enforcement officers, this statute also provides guidelines for the Alcohol Testing Program within the Department of Law Enforcement. You can also learn more about how tests must be administered.

Florida Department of Highway Safety and Motor Vehicles v. Hernandez, SC08-2330 (FLA. 6-9-2011) — On June 9, 2011, the Supreme Court of Florida issued it decision addressing “whether an individual's driver's license can be suspended by the Florida Department of Highway Safety and Motor Vehicles (DHSMV) under section 322.2615, Florida Statutes (2006),1 for the refusal to submit to a test of his or her breath-alcohol level where the refusal is not incident to a lawful arrest and, if not, whether the hearing officer has authority to review whether the refusal was incident to a lawful arrest.” In Hernandez v. Department of Highway Safety & Motor Vehicles, 995 So.2d 1077 (Fla. 1st DCA 2008), and McLaughlin v. Department of Highway Safety & Motor Vehicles, 2 So.3d 988 (Fla. 2d DCA 2008), the First and Second District Courts of Appeal reached opposite conclusions as to the scope of the hearing officer's authority to review the suspension. The Supreme Court affirmed that the issue of whether the refusal was incident to a lawful arrest is within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver's license for refusal to submit to a breath-alcohol test but held that the DHSMV cannot suspend a driver's license for refusal to submit to a breath test if the refusal is not incident to a lawful arrest, writing:

The DHSMV cannot suspend a driver's license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest. Florida law does not require an individual to submit to a breath alcohol-detection test simply because that person possesses a driver's license. The obligation to submit to breath-alcohol testing emanates from section 316.1932, Florida Statutes (2006), commonly known as the implied consent law. See State v. Miles, 775 So. 2d 950, 952 (Fla. 2000) (recognizing section 316.1932, Florida Statutes, as part of Florida's "implied consent law"). The statute provides that any person driving within Florida is deemed to have consented to testing to determine "the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages." § 316.1932(1)(a)1.a., Fla. Stat. (emphasis added). The statute further provides that the test "must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages." Id. (emphasis added). Accordingly, the Legislature has authorized the administration of a breath test only if it is incident to a lawful arrest and based on probable cause to believe that the person driving was under the influence of alcoholic beverages. As stated by the Fifth District in Pelham, 979 So. 2d at 306, "It necessarily follows that an individual does not violate the Implied Consent Law when he or she refuses to take a test that is not incidental to a lawful arrest."


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Ashley M. Aulls, P.A. | Brooksville DUI Test Refusal Lawyer

If you allegedly refused to submit to a breath, urine, or blood test when you were arrested for DUI in Central Florida, it will be in your best interest to immediately retain legal counsel. Ashley M. Aulls, P.A. aggressively defends clients all over the greater Hernando County area, including Spring Hill, Brooksville, Weeki Wachee, Inverness, Wildwood, New Port Richey, and many others.

Brooksville criminal defense attorney Ashley Aulls maintains open lines of communication with every person he represents. You can have him review your case and answer all of your legal questions during a free consultation as soon as you call (352) 593-4115 or submit an online contact form today.


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This website was created solely for general information purposes. It is not intended to provide official legal counsel for any situation. Only a licensed attorney in Florida can provide you with official legal guidance after learning the details surrounding your case. Contacting Ashley M. Aulls, P.A. through e-mail, fax, phone, or other medium, does not form an attorney-client relationship.